How to bring back Bill

A Clinton-Clinton 2008 ticket is constitutionally possible.

June 13, 2006

By Scott E. Gant

Bruce G. Peabody

WASHINGTON, D.C., AND MADISON, N.J.

Americans are nostalgic for the 1990s. They long for a time when terrorism was perceived as a problem confined to foreign lands and when the stock market's rise seemed unstoppable. And, it turns out, many of them miss former President Bill Clinton.

In a recent poll conducted for CNN, respondents favored Mr. Clinton over President Bush on a variety of issues, including policy areas traditionally viewed as GOP strongholds. By a wide margin, those surveyed indicated that Clinton did a better job managing the economy and handling foreign affairs and taxes.

Clinton's resurgent popularity, and Democrats' difficulties in taking over the White House in recent years, might counsel a bold strategy for 2008. Whoever is selected as the Democratic nominee for the next presidential race should consider William Jefferson Clinton as a candidate for vice president.

While the political advisability of such a move is subject to legitimate debate, the legal issues are more straightforward. The only serious question about the constitutionality of Clinton assuming the vice presidency relates to the interplay of the Constitution's 12th and 22nd Amendments.

The 12th Amendment was ratified following the election of 1800, which produced sustained electoral uncertainty after Thomas Jefferson and Aaron Burr, Jefferson's designated vice president, received the same number of electoral votes. The election was sent to the House of Representatives, which took 36 ballots to select Jefferson. The 12th Amendment thereafter required that electoral votes be cast separately for president and vice president, and specified that "no person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States."

A century and a half later, the states ratified the 22nd Amendment, largely as a response to Franklin Delano Roosevelt's four electoral victories. The amendment bars individuals from being "elected to the office of the president more than twice."

The 22nd Amendment is often described as prohibiting an already twice-elected president, such as Clinton, from again serving as president. But the text of the amendment suggests otherwise. In preventing individuals from being elected to the presidency more than twice, the amendment does not preclude a former president from again assuming the presidency by means other than election, including succession from the vice presidency. If this view is correct, then Clinton is not "constitutionally ineligible to the office of president," and is not barred by the 12th Amendment from being elected vice president.

Clinton's public approval at the time he stepped down from the White House was remarkably high given the voter "fatigue" that normally accompanies a second-term president. Now, nearly six years later, his popularity appears considerable and is seemingly increasing.

Of course, Clinton's spouse, Sen. Hillary Clinton, is viewed as a leading Democratic candidate for president. She would surely have reservations about putting her husband on the 2008 ticket. But Bill Clinton might help energize the Democratic base and defuse arguments that Mrs. Clinton is too liberal.

In the event that Senator Clinton elects not to run in 2008, perhaps an alternate Democratic nominee will have enough self-confidence to consider sharing the stage with the charismatic Bill Clinton in the hopes of recapturing the White House. As for Clinton himself, although there are many reasons why he might decline an invitation to run for vice president, the thrill of another campaign and the lure of a return to the West Wing might be too tempting to resist.

• Scott Gant is a partner with Boies, Schiller & Flexner in Washington. Bruce Peabody is an assistant professor of political science at Fairleigh Dickinson University in Madison, N.J.

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